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October 2016 Review

Welcome to our review of employment law news in the last month.
Judges have been very much in the news in the last few days, particularly in connection with the "Brexit judgment" which is, of course, nothing of the sort. Just this morning, Suzanne Evans of UKIP was speaking on the Today programme and attacking judges for perceived bias when, from a legal perspective, what was published last week was one of the most balanced and well-reasoned judgments you could hope to read. We live in worrying times when the executive and other politicians, let alone the media, do not appear to see any problem in attacking the independent judiciary.

Judges and judgments are, as usual, very much to the fore in this month's report and I'm pleased to be able to provide news of further impressive judgments. In Northern Ireland the Court of Appeal has been tackling the tricky question of balancing protected characteristics, namely religion and sexual orientation, in what has been reported as the "gay cake" case. Meanwhile, another judgment which has attracted widespread media attention is the decision of an Employment Tribunal in London that Uber drivers are workers and therefore entitled to benefits and protection including the minimum wage, working time limits and paid holidays. Uber and others were quick to dismiss the judgment as misinformed and likely to be overturned but, as I've commented in my report on the judgment, it is meticulous in its analysis and appears to be "appeal proof".

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.
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In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the "gay cake case". I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of "competing discriminations", religious belief prevailed over sexual orientation.

In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read "Support Gay Marriage". About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was "a Christian business". The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.

In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee's support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.

At the time I observed:

Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.

The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.

In the recent case of Brierly and ors v Asda Stores Ltd, a Tribunal has ruled that Asda store workers are able to compare themselves to distribution depot workers for equal pay purposes.

The facts of this case are that a group of (mainly female) Asda employees who were employed on an 'hourly rate' basis, argued that they were entitled to the same rate of pay as the distribution depot employees (the majority of whom were male). They claimed that their duties had historically been thought of as "women's work" and therefore worth less than the duties carried out by the employees working in the depot.

At the preliminary hearing, the Tribunal was tasked with deciding whether the store workers were able to rely upon this comparison. Section 79 of the Equality Act 2010 states that an equal pay comparison is only valid if the claimant and comparator are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but common terms apply at the establishments.

The Manchester Employment Tribunal firstly considered whether the above comparison would be allowed under EU law. It stated that although it is not enough that the Claimant and proposed comparator are employed by a single employer (there must also be a single 'source' i.e. a body responsible for this inequality but that could restore equal treatment), in this particular matter the single 'source' test had been satisfied, thus rejecting Asda's argument that the division of the Company structure into Retail and Distribution sectors meant that pay-setting authority had been delegated to separate bodies.

Can a dismissal be implied by the failure of an agency employer to find work for an employee? This was a question considered by the Employment Appeal Tribunal (EAT) in the recent case of Sandle v Adecco. The EAT concluded that in order to prove there had been a dismissal, an employer's unequivocal intention to dismiss must have been communicated to the employee in question.

By way of background Miss Sandle, the Claimant, was an agency worker employed by Adecco. When the Claimant's assignment working at another company terminated, Adecco failed to take any action to find her further work and, given the Claimant's failure to contact them, "assumed" that she was not interested in further agency work. Clearly this was not the Claimant's view and she subsequently brought a claim of unfair dismissal against Adecco.

The EAT held that in the absence of either a resignation from the employee or communication of dismissal from the employer, there could be no dismissal and nor could one be implied by either party's inaction. It was therefore concluded that the Claimant remained employed at the time her unfair dismissal claim was lodged and thus, as she could not evidence the fact that she had been dismissed, her claim failed.

I have been writing about employment status since this blog started a number of years ago. One of the most widely reported cases dealing with the issue was published last week in Aslam, Farrar and others v Uber B.V., Uber London Limited and Uber Britannnia Limited. As most readers will know, Uber is a controversial transportation system which provides app based bookings for private hire taxi journeys. It operates in 66 countries and 507 cities. There are some 30,000 Uber drivers operating in the London area. Uber B.V. owns the smartphone app. Uber London Limited is a licensed private hire operator and Uber Britannia holds licenses for district councils outside London.

At a case management hearing in 2015 two "test claimants" were selected for a preliminary hearing to determine the question of their status in the context of employment law protection (the action was backed by the GMB union). They claimed that, as workers, they should receive the minimum wage and be entitled to paid holidays as well as protection from whistle-blowing. Uber contended that they were independent contractors and not workers, and therefore not entitled to the rights claimed. The preliminary hearing took place over five days between 19 July and 12 October 2016, with the decision published on 28 October. The tribunal summarised how the Uber system operates. Passengers register their information on the app, including credit or debit card details. Once registered they can request journeys by using the app. They do not have to state their destination but, if they do, they may choose to receive a fare estimate. Uber then locates the nearest available driver and notifies him of the passenger's first name and rating (drivers and passengers can be rated on the app). He then has 10 seconds to accept the trip or it is offered to the next best matched driver. If accepted the driver is put in phone contact with the passenger to agree the pick-up location and advise about any delays but he is strongly discouraged from asking about the destination until the driver is picked up. Once the passenger is picked up the app specifies the route to the destination and this must be followed unless the passenger indicates otherwise. Once the journey is complete the driver confirms accordingly on the app and is then placed back in the pool of available drivers. The passenger pays via the app and the Uber software then generates what appears to be an invoice from the driver to the passenger. The driver is paid weekly based on the fares earned, less a service fee which is usually 25%.

The judgment sets out elaborate contractual terms issued by Uber which are clearly intended to give the impression that each journey is based on an independent contract made between the driver and the passenger. It would be fair to say that the tribunal was very unimpressed by the efforts made by Uber to maintain that the arrangements did not amount to worker contracts.

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